Filed: October 16, 1997

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-4233

(CR-95-55-F)

United States of America,

Plaintiff - Appellee,

versus

Dwaine Francis Teel,

Defendant - Appellant.

ORDER

The Court amends its opinion filed October 10, 1997, as

follows:

On the cover sheet, section 3, line 4 -- the district court's

number is corrected to read "CR-95-55-F."

For the Court - By Direction

/s/ Patricia S. Connor

Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4233

DWAINE FRANCIS TEEL,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

James C. Fox, Chief District Judge.

(CR-95-55-F)

Submitted: September 2, 1997

Decided: October 10, 1997

Before HAMILTON and WILLIAMS, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Joseph E. Zeszotarski, Jr., POYNER & SPRUILL, L.L.P., Raleigh,

North Carolina, for Appellant. Janice McKenzie Cole, United States

Attorney, John S. Bowler, Assistant United States Attorney, Raleigh,

North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Dwaine Francis Teel appeals from his convictions for conspiring to

distribute cocaine base in violation of 21 U.S.C. § 846 (1994), and

distributing cocaine base in violation of § 21 U.S.C. § 841 (1994).

The Government's evidence showed that Teel was a "middleman"

in a drug distribution network. The trial testimony related to two drug

sales of crack cocaine that Teel set up between the same parties. Clinton Pritchard, a confidential informant, testified that on January 23,

1995, he was instructed to make a controlled buy. He and his car were

searched and he was wired by the police in preparation for the drug

sale. He went to George Grimes' home, picked Grimes up, and they

drove to a particular area. Grimes told Pritchard to stop at a particular

residence, which had a mailbox with the name "Teel" on it, and Pritchard gave Grimes $2200 with which to make the drug purchase.

While Pritchard waited outside, a person he described as "the contact"

came and left in a Nissan 300 ZX. Grimes returned to the car and

presented Pritchard with two ounces of crack cocaine. After Pritchard

dropped Grimes off at his house, Pritchard turned the drugs over to

the police, who again searched him and his car and debriefed him.

Pritchard testified regarding a similar scenario on January 30,

1995. On January 30, however, Pritchard stated that "the contact" was

apparently already at the residence waiting and had driven a Volkswagen Jetta. Also, Pritchard saw a young man sitting on the porch,

but he was not able to get a good look at his face because it was drizzling that day and the person was wearing a dark hat. Pritchard

believed that the same drug source was involved during this transaction because the dollar amount and the weight of the drug was the

same. Again, Pritchard drove Grimes back, met the police, turned

over the drugs, and was searched and debriefed. Under crossexamination, Pritchard stated that he believed Grimes did not have the

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drugs on him when he first picked him up because if he had the sale

would have taken place immediately.

Grimes testified that he had known Pritchard for years. Consistent

with Pritchard's testimony, Grimes stated that Pritchard had called on

January 23, asking for a connection to drugs. Based on prior conversations, Grimes understood that Pritchard was looking for "rocks,"

crack cocaine. Grimes called Teel because of earlier conversations in

which Teel encouraged Grimes to channel such drug requests to him.

Teel told him that he could make the connection and confirmed this

with a prompt return call.

Grimes described being picked up by Pritchard on January 23 and

driving to Teel's house. Like Pritchard, Grimes stated that Pritchard

waited outside while he went inside. Grimes further testified that

while he and Teel were waiting for the drugs to be delivered, the only

people in the house were he, Teel, and Teel's mother, who was in a

different room. Michael Hollis then pulled into the driveway and

came into the house. Teel asked Hollis if he had the drugs, and Hollis

reached into his pocket and produced the drugs. Grimes then went

outside to the car to get the money from Pritchard. Grimes also stated

that the crack cocaine was handed from Hollis to Teel and then to

himself.

Grimes described a virtually identical scenario on January 30.

When he and Pritchard arrived at Teel's house, Teel was waiting for

them on the porch. Grimes and Teel went into the house and made

the transaction in the same manner. Grimes took the crack cocaine to

Pritchard who was waiting in the car. Again, the amount of the transaction was $2200.

Hollis also testified for the Government. He stated that on January

23, he received a call from Teel indicating that Teel had someone

who wanted to buy crack cocaine. He drove the drugs to Teel's house

in either his blue ZX (Nissan) or white Jetta (Volkswagen). He stated

that he gave the drugs directly to Teel and Teel gave him the money.

Like Grimes, Hollis testified that the drug transaction occurred in the

kitchen and that Teel's mother was in another room. He testified that

an identical transaction occurred on January 30. However, he did not

remember Grimes being in the house at the time of the transaction.

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He repeated that he had given the drugs directly to Teel, not to

Grimes.

The defense did not object to the Government's closing argument.

During defense counsel's closing argument, the defense attacked the

credibility of the Government's witnesses. Defense counsel made the

following statements:

The Government has no evidence that they seized drugs

from Dwaine Teel, they have no undercover agent buying

from Dwaine Teel. There is no, there is no corroboration for

what those two men said on the witness stand.

I submit that you, ladies and gentlemen, can't believe Mr.

Grimes or Mr. Hollis.

Ladies and gentlemen, I submit to you that Mr. Grimes lied

to you on the witness stand. He didn't tell you about the

trips to New York that he told Mr Pritchard [about]. Now,

he said I have just lied to Mr. Pritchard and the Government

will say it is irrelevant to the matters at hand, but it shows

that Mr. Grimes will bend the truth to help himself. And he

is helping himself here to bring in other people to take

accountability for his own acts. He couldn't get straight

whether he was under indictment or not. He just will not

give a straight answer, ladies and gentlemen.

Defense counsel also spoke in the first person and made statements

such as "I find it interesting that . . ." and "I submit to you that . . . ."

In her rebuttal argument, the prosecutor made the following statements:

Ladies and gentlemen, counsel has told you that there is no

corroboration. I think there is corroboration in this case and

I'm sure you realize that's not true. . . . Now, is this a grand

scheme to frame the defendant? I don't think so and I don't

believe you think that either.

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Now, counsel characterized George Wayne Grimes as a

major drug dealer and addict. He certainly did deal drugs,

and he certainly is a drug addict whether he was a major

drug dealer, no evidence of that, but I'm not going to minimize his involvement with drugs. But counsel thinks something is wrong with the fact that he was going to cooperate.

. . . There was nothing wrong with Grimes' decision to

cooperate. He said Grimes couldn't give you a straight

answer as to whether he is indicted or not. Shame on counsel. Grimes is not a lawyer. He is a man in trouble. And is

there really something wrong with trying to help yourself?

Was there something wrong with Mike Hollis getting on the

stand and telling the truth about what happened. Is there

something wrong with George Grimes getting on the stand

and telling you what really happened. That's how we know.

We are not going to bring anybody in here that doesn't

know what they are talking about that will be obscene.

Those people know what happened, they are cooperating;

sure to help themselves out. That is a primal instinct. What

each of us have the instinct to do is help themselves. That's

what they are doing. That is precisely what they are doing.

I believe they are not lying. I think you see the truth in what

they said.

Teel did not object to the prosecutor's rebuttal argument.

On appeal, Teel claims that the prosecutor's remarks during her

rebuttal argument were prejudicial and require reversal of his convictions and a new trial. Teel specifically complains of the four highlighted portions of the prosecutor's rebuttal argument.

Because Teel did not object to the Government's closing argument

we review for plain error. See Fed. R. Crim. P. 52(b); United States

v. Olano, 507 U.S. 725, 734 (1993); United States v. DePew, 932 F.2d

324, 327-28 (4th Cir. 1991). To correct plain error the appellate court

must find (1) an error, (2) which is plain and obvious under existing

law, (3) which is so prejudicial as to affect the outcome of the proceedings, and (4) which seriously affects the fairness, integrity, or

public reputation of the proceedings. See United States v. Hanno, 21

F.3d 42, 45 (4th Cir. 1994).

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To prevail on a claim of prosecutorial misconduct, a defendant

must show that the remarks were improper and that they prejudicially

affected his substantial rights so as to deprive him of a fair trial. See

United States v. Mitchell, 1 F.3d 235, 240 (4th Cir. 1993). Moreover,

rather than looking at isolated statements, we must review the entire

proceeding to see if the alleged misconduct undermined the trial's

fundamental fairness. See United States v. Adam, 70 F.3d 776, 780

(4th Cir. 1995). In determining whether there was prejudice, this court

considers (1) the degree to which the prosecutor's remarks have a tendency to mislead the jury and to prejudice the accused, (2) whether

the remarks were isolated or extensive, (3) absent the remarks, the

strength of competent proof introduced to establish the guilt of the

accused, and (4) whether the comments were deliberately placed

before the jury to divert attention to extraneous matters. See United

States v. Harrison, 716 F.2d 1050, 1052 (4th Cir. 1983).

We need not decide whether the remarks in this case were

improper. We note, however, that viewing the totality of the circumstances, the prosecutor's statements were invited, which generally

weighs in favor of the Government. See United States v. Young, 470

U.S. 1, 12-13 (1985). On the other hand, the prosecutor improperly

vouched for the credibility of its witnesses. See United States v.

Moore, 710 F.2d 157, 159 (4th Cir. 1983). In any event, Teel cannot

prevail on his claim because he cannot show prejudice, as required by

Olano.

The prosecutor's remarks may have misled the jury. However, they

were not extensive in light of defense counsel's attack on the Government's witnesses. Also, the prosecutor's remarks were only a brief

part of her rebuttal. Although they were the last words spoken to the

jury, which generally weighs in favor of reversal, the prosecutor was

responding to the defense counsel's argument. See Young, 470 U.S.

at 12-13 (holding that conviction will not be reversed if prosecutor's

argument was invited by defense's argument and did no more than

"right the scale"). Furthermore, the evidence of Teel's guilt was

strong, consisting of the testimony of two of his confederates and the

corroboration by Pritchard, who was acting as a confidential informant. Pritchard and his vehicle were searched before and after the

transaction and he was wired during the transaction. Further, police

observed Pritchard's vehicle as he went to the transactions and con-

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firmed his presence in the vicinity at the time of the second drug

transaction. Although Teel challenges the Government witnesses'

credibility, credibility determinations are for the jury to make and will

not be disturbed on appeal. See United States v. Saunders, 886 F.2d

56 (4th Cir. 1989). There is no suggestion that the prosecutor made

the comments to divert the jury's attention; rather, the remarks were

an invited response to defense counsel's closing argument. Therefore,

we do not find plain error in the prosecutor's closing argument.

Next, defense counsel raises an issue at Teel's request in accordance with Anders v. California, 386 U.S. 738 (1967). Teel contends

that testimony by the case agent to the grand jury resulting in his

indictment was not supported by the evidence at trial. Specifically,

Teel contends that it was never proven that he was a"distributor" of

illegal drugs, that he was part of an "allegiance" of conspirators, or

that he held "proceeds" of drug transactions.

A post-verdict claim of prosecutorial interference with the grand

jury's determination of probable cause is rendered harmless by the

verdict of the petit jury, unless the defect is "so fundamental that it

causes the grand jury no longer to be a grand jury, or the indictment

no longer to be an indictment." Midland Asphalt Corp. v. United

States, 489 U.S. 794, 802 (1989). Here, the petit jury's verdict was

supported by substantial evidence that showed Teel's guilt beyond a

reasonable doubt. Under the facts of this case, we cannot say that any

deficiency of proof before the grand jury was fatal to the validity of

the indictment. Accordingly, we find no basis for reversal.

We affirm Teel's conviction. We dispense with oral argument

because the facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the decisional

process.

AFFIRMED

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